New DIR Guidance For Safe Reopening

Jackson Lewis P.C.

At the end of July, the Department of Industrial Relations (“DIR”) released guidance to assist with the safe reopening of businesses in light of the ongoing COVID-19 pandemic. The guidance covers the following topics:

  • Employer Obligations to Keep the Workplace and Employees Safe
  • Face Coverings
  • Medical Checks
  • Returning to the Worksite
  • Waivers of Liability

The DIR states that employers must follow the California Department of Public Health’s (“CDPH”) Employer Guidelines if an employee tests positive for COVID-19. Employers should also: (1) instruct employees to stay home and notify the employer if they have symptoms of COVID-19, were diagnosed, or are awaiting test results; (2) report to CAL/OSHA any serious injury, illness, and death, including hospitalization from COVID-19 (even if the illness is not work-related); and (3) consider testing employees in the workplace to identify any potential cases. An employee who appears to have COVID-19 symptoms in the workplace must be separated from other employees, customers, and visitors, and sent home.

Employees barred from work or sent home may be eligible for paid leave under any of the following:

  • Federal paid sick leave up to a possible 80 hours under the Families First Coronavirus Response Act (FFCRA)
  • COVID-19 Supplemental Paid Sick Leave Ordinances
  • California Paid Sick Leave under California Labor Code Section 246
  • Local Paid Sick Leave Laws

In addition, employers must require employees to wear face coverings at all times, with limited exceptions. Face coverings must be provided at no cost to employees.

The guidance also provides clarity regarding medical checks. Specifically, the DIR confirmed an employee required to undergo medical checks, including on-site temperature checks, must be compensated for the time spent undergoing the check. This is because time spent undergoing temperature checks is “time worked” under the Labor Code, as it is “under the control of the employer.” However, the DIR states that whether medical checks performed at home should be compensated depends on the factual circumstances of each case and should be evaluated by the “level of control exercised by the employer.” In some cases, medical checks may be compensable if “an employer-mandated that workers spend a few minutes before every shift following a set of detailed procedures using a particular cell phone application to take and record their temperature and then fill out a health questionnaire of a non-trivial length.”

The DIR also notes that if an employee is required to use a personal cell phone as part of a medical check, the employer must provide a business reimbursement for cell phone use. Alternatively, if an employer provides a device at no charge to the employee, reimbursement is not required.

The DIR also issued guidance related to returning to the worksite. An employer may require employees who have been working remotely to return to the worksite presuming the employer has reviewed relevant guidance and put into place an action plan to ensure the safety of the workplace.

Lastly, the DIR has provided guidance related to waivers of liability sought by employers. Specifically, employers may not ask employees to waive their rights under the Labor Code. For example, employers must provide employees’ compensation benefits for injuries or illnesses contracted during the course of employment. Employers must also provide safe and healthy workplace conditions. Neither of these requirements can be waived.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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